The second wave of challenges to marriage laws excluding same-sex couples began in Hawai'i. The Baehr v. Lewin decision from the Hawai'i Supreme Court in 1993 that the opposite-sex policy was a sex classification subject to strict scrutiny under the state constitution set off a chain of events. In Hawai'i, there was a successful state referendum in Hawai'i retaining the power for the legislature to decide the sex of parties to a marriage. Nationally, there was ultimately the federal statute DOMA (now in federal disfavor) as well as many other state DOMAs. However, there were also developments in other states that resulted in the opposite-sex requirement being relaxed.

The complaint in Jackson v. Abercrombie filed in the federal district of Hawai'i this week challenges the Hawai'i opposite-sex marriage requirement as violating the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The 27 page complaint includes an excellent chronology: a summary of the Hawai'i litigation and subsequent cases, including Perry v. Brown now before the Ninth Circuit. The complaint also alleges that same-sex marriage has gained in popular acceptance since Baehr v. Lewin and that the civil union law, effective in Hawai'i in 2012, is not an adequate substitute for marriage.

Most likely, a district judge would wait for the Ninth Circuit decision in Perry, but presumably the state of Hawai'i will respond.

The court's order vacates the panel's opinion which, as we previously noted, is exceedingly problematical. The panel opinion created a circuit split, holding unconstitutional an ordinance almost identical to one that the Sixth Circuit found constitutional.

The City of Manchester's petition argues that a circuit split itself has constitutional dimensions:

The panel’s opinion, if it is allowed to stand, means that citizens living within the confines of the Sixth Circuit will be governed by a substantive rule of law on a crucial issue that is diametrically opposed to the substantive rule of law governing the citizens living in this Circuit with respect to that same crucial issue. Sufferance of this situation is anathema in a country where all citizens are guaranteed equal protection of the laws. A direct, unresolved circuit split on an issue of considerable national interest does not merely present an academic question, it actively breeds confusion about the law among the public and raises questions concerning the role of the courts in our society.

Yet as we noted, even apart from the circuit split, the Eighth Circuit's per curiam opinion was quite cursory: the First Amendment analysis is two paragraphs. The first paragraph disagrees with the district court that the ordinance was a content based regulation. As for the second paragraph, it concludes that the district court was required to follow Eighth Circuit precedent in another funeral protest case, Phelps-Roper v. Nixon, this one involving the Missouri statute.

The City of Manchester argues that "The errors of the trial court and the panel here stem from their dependence on Nixon and in turn on that panel’s mistaken reliance" on a previous Eighth Circuit opinion that in turn relied upon Frisby v. Schultz, 487 U.S. 474 (1988). In short, the City of Manchester argues that the panel judges failed to update their precedent, an argument that is supported by one of the concurring judges in the panel who "respectfully" suggested that the United States Supreme Court opinion in Snyder v. Phelps "provides the proper method of analysis for deciding whether the Manchester ordinance is constitutional."

Chief Judge Royce C. Lamberth (D.D.C.) ruled on Monday in Gordon v. Holder that the tax requirement in the federal Prevent All Cigarette Trafficking Act, or PACT, likely violates due process, but not the Tenth Amendment. Judge Lamberth also ruled that the PACT's ban on mailing cigarettes through the U.S. mail does not violate equal protection or due process.

Plaintiff Gordon owns and runs a cigarette retail business. He previously took orders by mail and through the internet; since 2010, he takes only phone orders and walk-ins. He challenged two provisions of the PACT: its ban on mailing cigarettes through the U.S. mail; and its requirement that remote cigarette sellers pay applicable state and local sales taxes in advance.

Judge Lamberth ruled that Gordon's claim that the tax provision violates due process is likely to succeed. Judge Lamberth concluded that Gordon didn't have sufficient contacts with some states where he sold cigarettes to satisfy the "minimum connection" test in Quill Corp. v. North Dakota (and borrowed from International Shoe Co. v. Washington). Without the minimum connection, the tax provision likely violates due process.

But Judge Lamberth rejected Gordon's other claims. Judge Lamberth wrote that the PACT's ban on sales of cigarettes through the U.S. mail satisifed rational basis review, and that the PACT's tax provision didn't commandeer states or their officers. (Nothing in PACT compels states to adopt or to change their taxes. Instead, the PACT simply compels cigarette retailers to comply with applicable state taxes.)

Judge Lamberth thus issued a preliminary injunction against the tax provision on due process grounds, but denied a preliminary injunction on Gordon's other claims.

US District Judge for the Northern District of California, Claudia Wilken, has issued a brief opinion supporting a TRO against California's SB73, reducing most In Home Support Services (IHSS).

Judge Wilken wrote that the proposed notices regarding the reductions "raise serious questions of violations of the federal Due Process Clause," as well as violations of several federal statutory schemes by " by placing IHSS recipients at imminent risk of unnecessary and unwanted out-of-home placement, including in institutions such as nursing homes, board and care facilities, and psychiatric hospitals; by discriminating on the basis of type of disability; and by using methods of administration that will exclude individuals with disabilities from IHSS."

Judge Wilken concluded that the "balance of equities strongly favors Plaintiffs because Defendants’ only interest is fiscal, whereas the plaintiff class faces life or death consequences." She set a briefing schedule, with a hearing most likely to be held on December 15.

An excellent discussion contextualizing the TRO by Marty Omoto of the California Disability Community Action Network is available here.

This one day conference organized by Professors Kendall Thomas and Penelope Andrews will honor the work of the late ConLawProf Derrick Bell.

CONFERENCE PROGRAM

9 a.m. to 9.15 a.m:

Welcome − Professor Kendall Thomas, Columbia Law School and Professor Penelope Andrews, CUNY School of Law

9.15 a.m. - 10.30 a.m.

The Elusive Quest for Equality and the Permanence of Racism: Faces at the Bottom of the Well and We Are Not Saved

Reflections Panel 1:

Chair: Professor Penelope Andrews, CUNY School of LawProfessor Twila Perry, Rutgers University School of LawProfessor Sheila Foster, Fordham University School of LawProfessor Rose Villazor, Hofstra University School of LawProfessor Olati Johnson, Columbia University School of Law

10.30 a.m to 10. 45 a.m. Morning Tea

10.45 a.m. to 12:15 p.m.

Reflections Panel 2:

Chair: Professor Kendall Thomas, Columbia University School of LawProfessor Susan Sturm, Columbia University School of LawProfessor Jenny Rivera, CUNY School of LawProfessor Leonard Baynes, St. John’s University School of LawProfessor Beryl Jones-Woodin, Brooklyn Law SchoolProfessor Sonia Katyal, Fordham University School of Law

12:15 to 1:15 p.m. Lunch

1:15 p.m. – 2.45 p.m.

Derrick Bell as Teacher

Chair: Professor Ruthann Robson, CUNY School of LawProfessor Vanessa Merton, Pace University School of LawProfessor Joy Radice, New York University School of LawProfessor Andrea McArdle, CUNY School of LawProfessor Robin Lenhardt, Fordham University School of LawProfessor I. Bennett Capers, Hofstra University School of Law

2:45 p.m. – 4:15 p.m.

Interest Convergence

Chair: Professor Paulette Caldwell, New York University School of LawProfessor David Troutt, Rutgers University School of LawProfessor Julie Suk, Cardozo School of Law, Yeshiva UniversityProfessor Rachel Godsil, Seton Hall University School of LawProfessor Taja-Nia Henderson, Rutgers University School of LawProfessor Theodore Shaw, Columbia University School of Law

4.00 to 5 p.m.

Closing Comments and Further Reflections

AN INFORMAL OPEN MICROPHONE FOR FOLKS IN THE AUDIENCE AND PANELISTS TO MAKE COMMENTS . . . OR SING!